Australian Building and Construction Commissioner v Ravbar

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FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196

File number: QUD 881 of 2016
Judge: REEVES J
Date of judgment: 10 August 2018
Catchwords:

INDUSTRIAL LAW – application seeking declarations that individual employees of the Construction, Forestry, Mining and Energy Union (CFMEU) contravened ss 340, 343 and 354 of the Fair Work Act 2009 (Cth) (FW Act) by allegedly giving directions and taking actions for the purpose of taking adverse action against and coercing a company into signing a CFMEU model enterprise agreement – four separate incidents – whether any of the alleged directions were given and whether any of the alleged actions were taken in fact with respect to any of the incidents – the relevant standard of proof – the principles on drawing inferences – what constitutes adverse action under ss 340 to 342 – what constitutes an intent to coerce under s 343 of the FW Act – what constitutes discrimination under s 354 of the FW Act – the operation of the reverse onus under s 361 of the FW Act – if any of the alleged contraventions occurred, whether some of the employees were liable for the actions of another under s 550 of the FW Act – whether the CFMEU was liable for the actions of its employees under ss 793 or 363 of the FW Act

Held:  one set of contraventions established

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth)

Evidence Act 1995 (Cth)

Fair Work Act 2009 (Cth)

Workplace Relations Act 1996 (Cth)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130; [2017] FCA 157

Australian Building and Construction Commissioner v Hall (2017) 269 IR 28; [2017] FCA 274

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345; [2012] FCAFC 93

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; [1999] FCA 1108

Director of the Fair Work Building Industry Inspectorate vRobinson (2016) 241 FCR 338; [2016] FCA 525

Director, Fair Work Building Industry Inspectorate vADCO Constructions Pty Ltd (No 2) [2016] FCA 1463

Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304; [2015] FCA 758

Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404; [2017] HCA 54

Fair Work Ombudsman v Australian Workers’ Union (2017) 271 IR 139; [2017]…

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Details
Case
[2018] FCA 1196
Decision Date

CaseChat Overview and Summary

In the case of Australian Building and Construction Commissioner v Ravbar, the Fair Work Ombudsman sought declarations that employees of the Construction, Forestry, Mining and Energy Union (CFMEU) contravened sections 340, 343, and 354 of the Fair Work Act 2009 (Cth). The dispute arose from allegations that the employees had given directions and taken actions to coerce a company into signing a CFMEU model enterprise agreement, which constituted adverse action and discrimination. The primary legal issues involved determining whether the alleged directions were given and actions taken, the applicable standard of proof, the principles on drawing inferences, and the definitions of adverse action, intent to coerce, and discrimination under the Act. Additionally, the court had to consider whether some employees were liable for the actions of others and whether the CFMEU was liable for its employees' actions.

The court held that one set of contraventions was established. The Commissioner's evidence established that Mr Ravbar gave the third Port Connect direction, and Mr Sutherland took actions during the third Port Connect incident. Given the onus placed on Mr Ravbar and Mr Sutherland by section 361 of the Fair Work Act to show that they did not act for proscribed reasons, and considering that Mr Sutherland did not provide evidence, the court found that both had contravened section 340 of the Act. The court also determined that Universal Cranes suffered a real and substantial alteration to its position as a result of the incident, satisfying the requirement of prejudice under section 342 of the Act.

The court's reasoning led to the conclusion that Mr Ravbar and Mr Sutherland contravened section 340 of the Fair Work Act. This finding was based on the established facts that the third Port Connect direction was given and the actions were taken, the failure of Mr Ravbar and Mr Sutherland to discharge the onus of proof, and the evidence of prejudice to Universal Cranes. Consequently, the court found that both Mr Ravbar and Mr Sutherland had contravened section 340 of the Fair Work Act.

ORDERS:
The parties were directed to prepare an appropriate form of orders to give effect to the court's reasons, with entry of orders governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The parties are to prepare an appropriate form of orders to give effect to these reasons.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not consider the second inference is open. Mr Zoller said there was at least one other CFMEU official present at gate 11 at the time of the incident, apart from the person who he mistook for Mr Toyer. I do not therefore consider there is any basis, on the evidence set out above, upon which I could distinguish between those people. However, bearing in mind the onus and s 140 considerations mentioned above, I do consider the first inference is reasonably open. Whether Mr Sutherland parked his vehicle immediately behind the franna crane, as Mr Cradden did, or beside Mr Cradden’s vehicle, it is reasonably open to be inferred from their conduct leading up to the incident and the fact that Mr Sutherland parked his vehicle on the site itself, that he was directly involved in blocking the Universal Cranes crane. Furthermore, the second paragraph of Mr Zoller’s report supports the conclusion that the two CFMEU vehicles present at gate 11 were blocking the crane’s access (see at [366] above). Finally, I consider this inference is more readily to be drawn where Mr Sutherland, a respondent party in this proceeding, has failed to give evidence and explain his role during this incident (see the discussion at [59] above).CONCLUSIONS Having regard to these findings of fact with respect to the third Port Connect direction, concerning Mr Ravbar and Mr Sutherland’s involvement in the third Port Connect incident itself, I turn now to consider the elements of each of the contraventions alleged against the two of them with respect to the third Port Connect incident. While the third Port Connect direction is pivotal to the contraventions alleged against Mr Ravbar, there remains a number of other elements of those contraventions which the Commissioner must prove before each of those contraventions is established. Dealing first with the contravention of s 340, I have reached the following conclusions:(a)having found that Mr Ravbar gave the third Port Connect direction, s 361 places the onus on him to establish that he did not give that direction for any of the proscribed reasons pleaded at [150] of the ASOC (see at [43] above and the discussion at [97]–[102] above). For the reasons I have given above, I do not consider Mr Ravbar has discharged that onus;(b)similarly, having found that Mr Sutherland took the actions he did during the third Port Connect incident, s 361 places the onus on him to establish that he did not take that action for any of the proscribed reasons pleaded in [150] of the ASOC (see at [43] above). Since Mr Sutherland elected not to give any evidence, he has obviously failed to discharge that onus; and(c)on the issue of prejudice pleaded at [151] and [152] of the ASOC (see at [43] above), based on the evidence of Mr Zoller summarised at [365] above, I am satisfied that Universal Cranes suffered a real and substantial alteration to its position as a result of the third Port Connect incident for the purposes of s 342 item 7(c). I am therefore satisfied that both of Mr Ravbar and Mr Sutherland contravened s 340 of the FW Act.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.